evidence rule statements

relevance

evidence must be relevant to be admissible

all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision

evidence is relevant if it has any tendency to make a fact more or less probable and the fact is of consequence in determining the action

403 exclusion of relevant evidence

evidence will not be admitted if the probative value is substantially outweighed by the risk of prejudice, confusing the issues, or misleading the jury

evidence of liability insurance

not admissible to prove fault or a party’s ability to pay damages. admissible to prove anything else such as ownership, control, motive

evidence of subsequent remedial measures

when a party takes remedial measures that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct

evidence of settlements, offers to settle & plea bargains

civil: inadmissible to prove liability or fault. does not include statements made before the claim or threat of litigation was asserted

criminal: inadmissible to prove guilt

evidence of payment or offers to pay medical expenses

inadmissible when offered to prove liability for injuries

related statements including factual admissions are admissible

offers to pay medical expenses in exchange for a liability release are inadmissible - considered a settlement offer

evidence of habit

may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion. must be regular, instinctive, and habitual

character evidence in civil cases

evidence of a person’s character is generally inadmissible to prove that they acted in conformity with that character on a given occasion.

exceptions: character at issue (like defamation, rare cases) - can be proved through opinion, reputation, or specific instances of conduct

prior acts of sexual assault or child molestation in cases for similar claims are admissible

evidence of D’s character in criminal cases

prosecution is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question

if the defendant makes their character an issue in the case by offering evidence of their good character or the victim’s bad character, the defendant opens the door to allow the prosecution to rebut that evidence

rape shield - victim’s character

evidence to prove the sexual behavior or predisposition of an alleged victim of sexual assault is not admissible in either civil or criminal proceedings

in a civil case, evidence offered to prove an alleged victim’s sexual behavior or predisposition is admissible if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party

specific instances of D’s bad conduct

inadmissible to prove character but admissible if independently relevant to prove motive, intent, absence of mistake, knowledge, identity, common plan or scheme

impeachment of a witness

impeachment casts an adverse reflection on the veracity of W’s testimony. evidence supporting witness credibility is inadmissible unless credibility has been attacked

impeachment by contradiction or prior inconsistent statements

a witness’s prior inconsistent statements may be used to impeach their present testimony. may be established through cross-exam or extrinsic evidence (unless collateral). witness must have an opportunity to explain or deny the statement, unless they are a hearsay declarant.

if a PIS is hearsay, it is admissible for impeachment purposes but not substantively

impeachment by bias, misconduct, or reputation for untruthfulness

may impeach a witness by establishing bias through cross-exam, or extrinsic evidence, but W must be questioned on cross-exam regarding the facts that show bias or interest so W has an opportunity to explain or deny

W may be questioned on cross-exam about any prior misconduct probative of truthfulness. no extrinsic evidence permitted

W may be impeached by testimony describing his reputation for untruthfulness in the community

609 impeachment by prior conviction

any witness can be impeached by evidence that they have been convicted of a crime that involved dishonesty or false statement

for a crime not involving fraud or dishonesty, it is admissible to impeach only if a felony with imprisonment for more than one year

a felony conviction not involving truth or dishonesty may be admitted if its probative value substantially outweighs the danger of harm and unfair prejudice

if more than 10 years have passed, the evidence will only come in if the probative value substantially outweighs the prejudicial effect and the proponent gives notice

witness competency

witnesses are generally presumed to be competent

must have personal knowledge, memory, ability to communicate, and take an oath to tell the truth

present recollection refreshed

use of documents to refresh W’s testimony during testimony. W cannot read aloud but can look at it briefly, then continue the testimony unassisted. opponent may inspect and offer into evidence anything used to refresh W’s memory

recorded recollection

contents of a record/document W previously made or adopted is read into evidence.

The witness once had personal knowledge,

The statement was made when the memory was fresh,

The statement was accurate at the time, and

The witness cannot now recall well enough to testify fully and accurately.

not admissible as evidence unless offered by opposing party

lay opinion

lay opinion testimony is admissible if it is rationally based on W’s perception, helpful to the trier of fact, and it is not based on scientific, technical, or other specialized knowledge

expert opinions

expert opinions are admissible if it is helpful to the trier of fact, they are qualified with knowledge/skill/experience/training/education, they believe their opinion to a reasonable degree of certainty, there is a proper factual basis (can be based on inadmissible evidence) and they rely on reliable principals

attorney-client privilege

communications between an attorney and client are privileged unless waived. a communication must be intended to be confidential and made to facilitate legal services.

exceptions: if a client seeks legal services to aid in a crime/fraud or an attorney defending a malpractice claim

doctor-patient and therapist-client privilege

doctor-patient privilege prevents the disclosure of information confidentially conveyed by a patient to a physician. it must be made for purposes of obtaining diagnosis or treatment, pertinent to diagnosis or treatment, and intended by the patient to be confidential. doesn’t apply where patient’s condition is a legal issue, services were sought to aid in a crime/tort, or a dispute between doctor and patient

therapist-client information is protected if client intends the communication to be confidential and it was made to facilitate therapy or social work

spousal testimony & privilege

in criminal cases, a person whose spouse is a D cannot be called as a witness by prosecution or compelled to testify. only the witness may invoke the privilege

marital communications privilege protects communications made during marriage, even after divorce

authentication

every item of physical evidence must be authenticated - proved by any means that serve to establish authenticity.

self-authenticating documents are writings that contain identifying information and don’t need separate authentication (deeds, notarized documents, newspapers)

best evidence rule

if evidence is offered to prove the contents of a writing, an original document must be used unless it is unavailable.

evidence sufficient to prove a writing’s contents: originals, duplicates, testimony regarding contents, and the voluminous documents exception

completeness doctrine: if a party introduces part of a writing into evidence, the adverse party may introduce any other part that in fairness ought to be considered at the same time.

judicial notice

a court may recognize a fact as true without formal presentation of evidence, either on its own or upon formal request of a party

hearsay

hearsay is an out of court statement offered to prove the truth of the matter asserted. generally admissible subject to certain exceptions and exemptions

admissible out-of-court statements

out of court statements are not hearsay if offered to prove anything other than the truth of the matter they assert

examples: statements of independent legal significance, effect on the listener, show speaker’s knowledge, or to show state of mindn

non-hearsay exemptions

statement of party-opponent: judicial statements made in pleading/testimony, adoptive statements, and vicarious statements

declarant-witness’s prior statement: if inconsistent and was given under oath, a prior consistent statement, or a prior statement of identification after perception

hearsay exceptions where declarant must be unavailable

former testimony

statements against interest

dying declarations

statements of personal or family history

statements offered against party procuring declarant’s unavailability

hearsay exceptions - declarant availability immaterial

present state of mind

excited utterances

present sense impressions

physical condition

past recollection recorded

business records

public records/reports

judgments and prior convictions

ancient documents

documents affecting property interests

learned treatises

family records

market reports

confrontation clause

an out of court statement offered against D will be excluded if the declarant is unavailable, D had no opportunity to cross-examine the declarant about the statement at the time it was made, and the statement is testimonial

testimonial statements: prior court proceeding statements, those made in furtherance of a police investigation